Intellectual property law is good. Excess in intellectual property law is not. This blog is about excess in Canadian and international copyright law, trademarks law and patent law. I practice IP law with Macera & Jarzyna, LLP in Ottawa, Canada. I've also been in government and academe. My views are purely personal and don't necessarily reflect those of my firm or any of its clients. Nothing on this blog should be taken as legal advice.

Monday, January 16, 2006

More Excess Rhetoric - "apologists for piracy"

The Creators' Copyright Coalition (which mostly consists of collectives and lobby groups) is entitled to defend the Honourable Sarmite Bulte, M.P., who, by all accounts including her own, is their champion.

Their choice of language is, however, more than a bit excessive and is frankly ultimately counterproductive:

What a shame to see her (and the whole political process) subjected to crude smears about money and foreign interests. Particularly when they come from the American lobby group Electronic Frontier Foundation, which is rich but ignorant of Canadian issues, and by the Canadian creators’ most implacable foes, the academic apologists for piracy.

I know a lot of academics from around the world but I don't know any academic "apologists for piracy" - in Canada or elsewhere. I do know that there are many brave academics in the USA, Europe, Australia, and some in developing countries and a few in Canada (e.g. Michael Geist who is empowering his Canadian colleagues), who use their hard earned positions to do what they are supposed to do - which is to analyze and explain the history and theory of copyright law and to suggest ways in which it could be improved in the public interest.

As for the EFF, it is neither rich financially nor ignorant of Canadian issues. It is, however, very rich in resolve , expertise and integrity and the enthusiasm of its brilliant young staff. It has done spectacular public interest work on a shoe string in the USA and I and many others welcome its support of copyright reform in Canada through Online Rights Canada. The EFF website is one of the greatest research tools and archives around for hot button issues in American and international copyright law.

After all, copyright law is about the public interest, isn’t it? It’s not just about the sense of entitlement that certain corporate and collective interests have come to view as a natural right.

Do the American automobile companies call those who buy better and cheaper cars from Japan and elsewhere, or who ride bicycles,“thieves”? Do they – until recently one of the most protected industries of modern times – claim that they are entitled by law to maintain their yearly sales in the face of new technology, increased competition and – horror of horrors – new business models, such a public transportation? Even they have realized that the times, they are a-changin’.

Unfortunately, in the current excessive rhetoric, the following are just some of the areas of academic discussion that seem to have been conflated with “piracy”:

Questioning the wisdom of the American DMCA and its importation into Canada

Questioning Sony’s right to infect its customers’ computers with spyware and security holes

Questioning the right of Canadians to engage in private copying, including downloading,when Canadians pay very high tariffs for precisely this right as a quid pro quo for one of the richest levy schemes in the world

Questioning those (presumably including the Supreme Court of Canada)who believe ina wider concept of fair dealing or even that most American of notions, fair use. Interestingly, I’ve heard several reports that Glen Bloom, long time and able champion of corporate and collective copyright and adjunct academic,told a Law Society CLE on Friday the 13th last that he has now changed his tune and believes in the expanded notion of fair use in Canada.

“Piracy” is a word that should be used carefully and properly and applied only to harmful intentional commercial scale infringement. It is wholly inappropriate to apply the word to teenagers who engage in downloading music that they love, or their grandmothers who provide them internet access on occasion, or to law professors who have the temerity to believe in the inconvenient fact (as seen by the corporate and collective point of view) that there are also users’ rights in copyright law.

Overuse of the rhetoric of piracy is at best crying wolf. At worst, it is crude propaganda that has fooled some of the politicians some of the time in Canada and elsewhere but won’t work in the long run.

If there is going to be a meaningful debate about this in Canada, the Creators' Copyright Coalition and their friends should apply their creative and communication skills in a less hysteric and more constructive manner.

3 comments:

Please note: Their reference to EFF is actually a reference to Canadian Science Fiction author Cory Doctorow. While Cory previously worked for EFF in Europe, he is no longer working for them so that he can dedicate more time to his writing.

This shows just how out of touch these lobby groups for the intermediaries are: that they would attack a Canadian author claiming that he was opposed to Canadian creators.

I believe Cory's personal involvement is having a much larger influence than EFF.

That said, EFF is still a member-driven organization with many Canadian members (myself included). It isn't like CRIA/CAAST/CMPDA who's interests are foreign, but more like the UN which just happens to be headquartered outside of the country.